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2012 DIGILAW 1652 (PAT)

Ali Ahmad Siddique v. State of Bihar

2012-12-07

ASHWANI KUMAR SINGH

body2012
JUDGMENT 1. The present appeal has been filed under section 378(4) of the Code of Criminal Procedure in pursuance of leave granted by this court on 30.7.2003 in S.L.A. No.21 of 2002. The appeal is directed against the judgment of acquittal dated 10.4.2002 passed by the learned Sub-Divisional Judicial Magistrate, Barh, Patna, in Complaint Case No.324(C) of 1993/Trial No.67 of 2000 by which the learned Sub-Divisional Judicial Magistrate, Barh, Patna, has acquitted the opposite party nos. 2 to 9 from the charges levelled against them. The appellant had filed a complaint against the opposite parties under sections 427, 447, 147 and 148 of the Indian Penal Code. The case of the complainant, in brief, is that on 16.9.1993 at 9.30 a.m. the accused persons being variously armed came over his land bearing plot no.336. The accused persons, namely, Neshar Mian and Rehman Mian were armed with Hasua and the remaining accused were armed with Lathi. The accused Rahman Mian asked the complainant as to why he is not allowing them to construct passage on the land. They told that they would construct passage themselves. They also warned that in case any objection is made, they would kill him and his family members. The complainant became nervous. He raised hue and cry pursuant to which witnesses assembled there. The accused persons cut down and damaged the trees and plants standing on the land of the complainant. The act of mischief committed by the accused persons caused a loss of Rs.1,000/- (one thousand) to the complainant. The further case of the complainant is that the land in question belongs to him and several trees were standing thereon. It has been alleged that the accused persons intended to have a passage through the land of the complainant and with this object in mind, they committed the aforesaid offence. It has also been mentioned in the complaint petition that an information was given to the Officer-in-charge of Barh police station immediately after the occurrence but since no action was taken by the police, the complaint case was filed in the court on 18.9.1993. 2. The complainant was examined on solemn affirmation. Some witnesses were examined on behalf of the complainant in course of enquiry under section 202 of the Code of Criminal Procedure. The learned Sub-Divisional Judicial Magistrate, finding a prima facie case to be made out, summoned the accused persons to face trial. 2. The complainant was examined on solemn affirmation. Some witnesses were examined on behalf of the complainant in course of enquiry under section 202 of the Code of Criminal Procedure. The learned Sub-Divisional Judicial Magistrate, finding a prima facie case to be made out, summoned the accused persons to face trial. All the accused persons were charged under sections 427 and 447 of the Indian Penal Code. Two of them, namely, Neshar Mian and Rahman Mian were separately charged under section 148 of the Indian Penal Code whereas the remaining six accused persons were charged under section 147 of the Indian Penal Code. The accused persons denied the charges and claimed to be tried. 3. In course of trial, on behalf of the prosecution, altogether four witnesses have been examined. P.W.1 Imtiyaz Ali and P.W.2 Md. Aslam Ali are sons of the complainant. These two witnesses have supported the case of the complainant during their examination-in-chief. P.W.3 Ali Ahmad Siddique is the complainant himself. He has also supported the facts stated in the complaint in his examination-in-chief. P.W.4 Bachu Gope is known to the complainant from before. On behalf of the prosecution, certified copy of the judgment passed in Cr.Appeal No.6 of 1994 has been brought on record which has been marked as Ext.-1. The certified copy of the judgment passed in Title Suit No.95 of 1993 has also been brought on record which has been marked as Ext.-2. 4. In the complaint petition, apart from the witnesses examined on behalf of the complainant, two other persons were named as witnesses to the occurrence. They are Sheoji Singh and Abdul Rashid. The complainant has not examined them in course of trial. 5. The defence has pleaded innocence. It has also examined three witnesses, namely, Krishna Deo Prasad Singh, Sheshar Prasad and Ram Nandan Prasad in order to prove the right of passage over the land in question. They are Sheoji Singh and Abdul Rashid. The complainant has not examined them in course of trial. 5. The defence has pleaded innocence. It has also examined three witnesses, namely, Krishna Deo Prasad Singh, Sheshar Prasad and Ram Nandan Prasad in order to prove the right of passage over the land in question. The defence has also brought on record the measurement report of Amin of Barh Municipality which has been marked as Ext.A, the measurement map of the place of occurrence which has been marked as Ext.-A/1, letter no.105 dated 25.9.1993 written by Rajeshwar Pandey and signed by the then Executive Magistrate Dil Mohan Prasad in the capacity of S.D.O., Barh which has been marked as Ext.B with objection, show cause filed by Barh Municipality through Special Officer in Title Suit No.95 of 1993 which has been marked as Ext.-C with objection, certified copy of the judgment passed in Complaint Case No.25 of 1999 dated 17.7.2001 which has been marked as Ext.-D, certified copy of the order of the Title Appeal which has been marked as Ext.-E, certified copy of the statement of the complainant on solemn affirmation on 20.2.1999 in Complaint Case No.25(C) of 1999 which has been marked as Ext.-F. From the documentary evidence adduced on behalf of the parties, it is evident that for the place of occurrence land Title Suit No.95 of 1993 was contested between the parties before the learned Munsif, Barh, Patna. The dispute related to right, title and possession over the place of occurrence. The complainant was plaintiff in that case and the accused persons were defendants. The plaintiff had claimed right, title and possession over the land in question. The defendants had claimed in their written statement that it was Municipal passage. The Barh Municipality had also claimed that the land in question is the Municipal passage used by general public. It further appears that Title Suit No.95 of 1993 was decided in favour of the complainant and against the accused persons on contest with cost on 22.9.2001. Against the judgment and decree of the learned Munsif’s Court in the aforesaid title suit, the accused persons had preferred a title appeal, which was still pending between the parties. Thus, it appears that the two parties were claiming their right on the place of occurrence and the matter was pending before the appellate court. Against the judgment and decree of the learned Munsif’s Court in the aforesaid title suit, the accused persons had preferred a title appeal, which was still pending between the parties. Thus, it appears that the two parties were claiming their right on the place of occurrence and the matter was pending before the appellate court. It further appears that in Title Suit No.95 of 1993, the cause of action had arisen on 26.9.1993. 6. The oral and documentary evidence adduced by the defence side reveals that at the time of measurement not even a single tree was found damaged. It also transpires that the Barh Municipality claimed and found the place of occurrence as public land. The court of learned Munsif had passed an order in favour of the complainant in the title suit but the matter was subjudice in appeal before the learned Sub Judge-1, Barh. 7. From the evidence adduced on behalf of the complainant it is apparent that the witnesses examined on behalf of the complainant are all interested witnesses. P.W.1 Imteyaz Ali and P.W.2 Md. Aslam Ali, as indicated above, are sons of the complainant and P.W.4 Bachu Gope is also closely known to the complainant. The independent witnesses named in the complaint petition have not been examined in course of trial. There is no explanation on behalf of the complainant as to why they were not examined. 8. The witnesses examined on behalf of the complainant have failed to disclose as to how many trees were exactly standing over the land in dispute before the occurrence and how many remained thereon after the occurrence. It has come in evidence that the complainant is an Advocate. It has also come in evidence that he and his family members have brought several cases against different persons. The occurrence allegedly took place on 16.9.1993 in the morning at 9.30 a.m. If the police had refused to register the F.I.R., it is not known as to why the complainant did not complain in the court either on 16th September, 1993 or on 17th September, 1993. The evidence available on record goes to show that the parties were hostile to each other. The accused persons along with public in general had claimed their right of passage. 9. The evidence available on record goes to show that the parties were hostile to each other. The accused persons along with public in general had claimed their right of passage. 9. I further find that D.W.2 Sesar Prasad, an Advocate of Barh Civil Court, has deposed that on 26.9.1993 he had been to the place of occurrence and he did not find any plant or tree in damaged condition. He has stated that plants and trees were found intact over the land in dispute. From perusal of the complaint of Title Suit No.95 of 1993, it appears that the cause of action arose on 26.9.1993. On 16.9.1993 both the parties were exerting their right on the place of occurrence land. 10. Considering all these aspects of the matter, the trial court came to a conclusion that neither the case of trespass nor the case of mischief could be proved by the complainant. The learned Sub Divisional Judicial Magistrate, Barh held that since the complainant failed to establish that the trees and plants were cut away by the accused persons, the offence of mischief was not proved. He has also held that since the right of user of land was exercised in bona fide belief, the charge of trespass has also not been proved. He further contended that the prosecution witnesses have failed to prove the case of even unlawful assembly. The trial court has recorded clear, cogent and convincing reasons in recording acquittal. The findings of the trial court are neither erroneous nor perverse. 11. I, thus, find no merit in the present appeal. It is dismissed, accordingly.